Police v Conway

Case [2006] SASC 186

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

POLICE v CONWAY; POLICE v PARKER

[2006] SASC 186

Judgment of The Full Court

(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Anderson)

26 June 2006

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES - GROUNDS RELATING TO USE OF INTOXICATING LIQUOR OR DRUGS

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PERMISSIVE, DIRECTORY AND MANDATORY PROVISIONS

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES

Appeals against orders of magistrates pursuant to section 47IAB of the Road Traffic Act 1961 (SA) setting aside licence suspension notices issued to the appellants pursuant to section 47IAA of the Road Traffic Act - appeals brought on ground that in both cases, the magistrates erred in making an order pursuant to section 47IAB without evidence being given by or on behalf of the respondents.

Consideration of the legislative scheme for immediate licence disqualification or suspension - consideration of whether strict compliance with the legislative requirement that a notice of immediate licence disqualification or suspension issued pursuant to section 47IAA specify the offence said to have been committed is necessary and had been met - consideration of the meaning of the phrase "evidence by or on behalf of the applicant" in the context of the legislative scheme - discussion of the privilege against self-incrimination.

Held: Strict compliance with the requirement that the notice of suspension or disqualification specify the offence is necessary - the notices issued to the respondents in the prescribed form identified the incorrect offence - the notices issued to the respondents were invalid - "evidence" in the context of the legislative scheme ought to be construed broadly - the magistrates did not err by failing to require the respondents to give sworn evidence - appeals dismissed.

Road Traffic Act 1961 (SA) s 47IAA, s 47IAB, s 47E; Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 6F, referred to.
Stanton v Police (1996) 66 SASR 263 ; Police v Jelinek (1998) 200 LSJS 441 ; Azzopardi v The Queen (2001) 205 CLR 50 ; Sorby v The Commonwealth (1983) 152 CLR 281; Kempley v The King [1944] ALR 249 ; Petty and Maiden v The Queen (1991) 173 CLR 95; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 329; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Bond v WorkCover Corporation of South Australia and Allianz Australia Workers’ Compensation (SA) Ltd [2005] SASC 464; Doe v Davis (1847) 10 QB 314 ; Wendo v R (1963) 109 CLR 599 ; AG’s Reference No 2 of 1987 (1987) 46 SASR 275; Allesch v Maunz (2000) 203 CLR 172 ; Re Pochi (1979) 26 ALR 247; Reg v Deputy Industrial Injuries Commissioner: Ex parte Moore [1965] 1 QB 456, considered.

POLICE v CONWAY; POLICE v PARKER
[2006] SASC 186

Full Court:      Bleby, Gray and Anderson JJ

THE COURT:

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Police v Conway [2006] SASC 186
Case
[2006] SASC 186
Decision Date

CaseChat Overview and Summary

In the matter of Police v Conway, the applicants challenged the decisions of the Magistrates Court of South Australia to suspend their driving licenses under section 47IAB of the Road Traffic Act 1994 (SA). The applicants argued that the Magistrates Court had erred in law by accepting unsworn evidence and in issuing notices that did not comply with the requirements of section 47IAA of the Act.

The primary legal issue before the court was whether the Magistrates Court was required to insist on sworn evidence before it could proceed to determine an application under section 47IAB. The applicants contended that the word "evidence" in section 47IAB should be construed narrowly to mean evidence given on oath, either by the applicant or another person, or to documents and other relevant materials proven in the normal way. In contrast, the respondents submitted that the word "evidence" should be given its natural and ordinary meaning and that it was sufficient for the Magistrates Court to proceed on the basis of unsworn evidence.

The Court held that the word "evidence" within the context of section 47IAB should be construed broadly to include unsworn evidence. The Court held that the requirement for evidence on oath and proper proof is not strictly necessary for the purposes of section 47IAB, given the scheme of the Act and the seriousness of the conduct dealt with by the legislation. However, the Court also held that the notices of licence suspension, in the prescribed form, failed to comply with the mandatory legislative requirement that the notice "must specify the offence to which the notice relates". Accordingly, the notices issued were ineffective to secure valid licence disqualifications or suspensions.

The Court dismissed both appeals and held that the Magistrates Court was correct to proceed to determine the section 47IAB applications without requiring either applicant to give sworn evidence. However, the Court held that the notices of licence suspension were invalid due to the failure to specify the offence to which the notice related.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It follows that the failure to strictly adhere to the requirement in section 47IAA(3) results in a failure to validly initiate the disqualification or suspension of licence process. In this respect, it was the purpose of the legislation, as a means of providing protection to the person the subject of the disqualification or suspension order, that a failure to strictly comply with the provisions of the Act should render the notice invalid. From this it follows that the actions of the police, in purporting to suspend Ms Conway’s and Mr Parker’s licences by issuing invalid notices, were taken beyond power and in jurisdictional error. Evidence given by or on behalf of the applicant Counsel for the appellant submitted that the word “evidence” in section 47IAB ought to be given its natural and ordinary meaning. So defined, counsel contended that “evidence” as contemplated in section 47IAB, should be construed to mean evidence given on oath, either by the applicant or another person, or to documents and other relevant materials proven in the normal way. In short, the appellant contended that the strict rules of evidence applied to the review proceedings before the magistrate. Counsel pointed to section 9 of the Evidence Act 1929 (SA), which articulates the limited exceptions to the rule, that evidence that is not given on a validly administered oath or affirmation is inadmissible.[29] Counsel contended that the sanction of the oath is so fundamental to the concept of evidence that it should only be taken to be dispensed with by the clearest and most unequivocal statutory language and that such language does not appear in section 47IAB. [29] Doe v Davis (1847) 10 QB 314 at 323 (Lord Denman CJ); Wendo v R (1963) 109 CLR 599 at 572 (Taylor and Owen JJ); AG’s Reference No 2 of 1987 (1987) 46 SASR 275. Counsel submitted that the absence of any reference to evidence on oath in section 47IAB simply means that evidence in forms other than oral is also contemplated. Counsel argued that the requirement for evidence on oath and proper proof is likely given the scheme of the Act, the seriousness of the conduct dealt with by the legislation and the consequent likely intention of Parliament that the material put forward by the applicant carry the important sanction of an oath. Against this background, counsel for the appellant contended that it would be erroneous for a magistrate to receive and act on unsworn statements made from the bar table or contained in the written application. Section 47IAB(4) of the Road Traffic Act provides that the Commissioner of Police is a party to the review process and may appear at the hearing represented by legal counsel or a member of the police force. Counsel for the appellant contended that, by virtue of the Commissioner’s role as a party and by application of the principles of natural justice,[30] the Commissioner enjoys certain rights in relation to the review process. One of those rights, counsel submitted, is the right to challenge the evidence presented by the applicant, which includes the ability to cross-examine the applicant and to otherwise test any evidence presented by the applicant. Counsel contended that such an interpretation was consistent with the purpose and intention of the Act.[30] In particular, counsel drew the Court’s attention to the observations of Kirby J in Allesch v Maunz (2000) 203 CLR 172 at [35]:It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals.

Decision

Reasons for decision

As already observed, the word “evidence” within the context of section 47IAB is to be construed broadly. It does not follow from the above findings that submissions from the bar table will necessarily be adequate to satisfy the magistrate that the applicant has made out reasonable prospects of an acquittal and that the application pursuant to section 47IAB should be granted. What evidence is required will depend on the individual circumstances of each matter. An apparently incredulous and or implausible account may require verification on oath before a magistrate would find the onus satisfied.Conclusion In our view, in both instances under appeal the magistrates were correct to proceed to determine the section 47IAB applications without requiring either applicant to give sworn evidence. However, in any event, the notices of licence suspension, in the prescribed form, failed to comply with the mandatory legislative requirement that the notice “must specify the offence to which the notice relates”. Accordingly, the notices issued were ineffective to secure valid licence disqualifications or suspensions. Both appeals are dismissed.

Ratio Decidendi

Legal Principle Established

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